Unifund Assurance Co. v. D.E. et al.

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: MacPherson, Cronk and Gillese, JJ.A.
• Citation: 2015 ONCA 423,(2015), 336 O.A.C. 72 (CA)
• Date: 21 May 2015

Unifund Assurance Co. v. D.E. (2015), 336 O.A.C. 72 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. JN.022

Unifund Assurance Company (respondent/appellant) v. D.E. and L.E. (applicants/respondents)

(C59471; 2015 ONCA 423)

Indexed As: Unifund Assurance Co. v. D.E. et al.

Ontario Court of Appeal

MacPherson, Cronk and Gillese, JJ.A.

June 11, 2015.

Summary:

The applicants were defendants in a lawsuit against them for negligence for failing to control their daughter. The daughter, a grade eight student, allegedly bullied a fellow student. The applicants had a homeowner's insurance policy with Unifund Assurance Co. and requested that the insurer defend them in the negligence action. Unifund refused, relying on two exclusion clauses in the policy. The applicants applied for a declaration that Unifund had a duty to defend them in the underlying action.

The Ontario Supreme Court, in a decision with neutral citation 2014 ONSC 5243, allowed the application and granted the declaration. Unifund appealed.

The Ontario Court of Appeal allowed the appeal. Unifund did not have a duty to defend.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Insurance - Topic 725

Insurers - Duties - Duty to defend - The applicants were sued for negligence for failing to control their daughter, who had allegedly bullied a fellow grade eight student causing her physical and psychological injuries - The applicant sought a declaration that their insurer under a homeowner's insurance policy had a duty to defend them in the negligence action - The insurer refused, relying on two exclusion clauses in the policy; (1) an exclusion respecting intentional torts (clause 6); and (2) an exclusion respecting the failure of the insured to take steps to prevent physical abuse and harassment (s. 7(b)) - The applicants applied for a declaration that Unifund had a duty to defend them in the underlying action - The Ontario Court of Appeal held that coverage should not be excluded under clause 6 - However, clause 7(b) was clear on its face and applied to the lawsuit as pleaded against the applicants - The insurer did not have a duty to defend the applicants - See paragraphs 1 to 32.

Insurance - Topic 6824

Liability insurance - Homeowner's comprehensive policy - Exclusions - Intentional acts - [See Insurance - Topic 725 ].

Insurance - Topic 6825

Liability insurance - Homeowner's comprehensive policy - Exclusions - Failure by insured to prevent sexual, physical, psychological abuse or harassment or corporal punishment - [See Insurance - Topic 725 ].

Cases Noticed:

Durham District School Board v. Grodesky et al. (2012), 290 O.A.C. 329; 2015 ONCA 423, refd to. [para. 14].

Scalera v. Lloyd's of London, [2000] 1 S.C.R. 551; 253 N.R. 1; 135 B.C.A.C. 161; 221 W.A.C. 161; 2000 SCC 24, refd to. [para. 18].

D.J.F. v. B.L., [2008] O.T.C. Uned. G27 (Sup. Ct.), refd to. [para. 28].

Counsel:

Mark M. O'Donnell and Mark W. Barrett, for the appellant;

Vusumzi Msi, for the respondents.

This appeal was heard on May 21, 2015, before MacPherson, Cronk and Gillese, JJ.A., of the Ontario Court of Appeal. The following decision was delivered for the court by MacPherson, J.A., on June 11, 2015.